Dozens of law professors: PROTECT IP Act is unconstitutional

Ninety law profs from across the political spectrum agree: the PROTECT IP Act …

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn "Instapundit" Reynolds.

"The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order... issued the same day the complaint is filed," they write. Such a restraining order, which they describe as "the equivalent of an Internet death penalty," raises serious constitutional questions.

The Supreme Court has held that it's unconstitutional to suppress speech without an "adversary proceeding." That is, a speaker must, at a minimum, be given the opportunity to tell his side of the story to a judge before his speech can be suppressed.

Yet under PIPA, a judge decides whether to block a domain after hearing only from the government. Overseas domain owners (and the speakers who might make use of their websites) aren't offered the opportunity to either participate in the legal process or appeal the decision after the fact. (Affected domain owners may file a separate lawsuit after the fact.) This, the professors say, "falls far short of what the Constitution requires before speech can be eliminated from public circulation."

The law professors also point out that blocking entire domains could "suppress vast amounts of protected speech containing no infringing content whatsoever" if an entire domain is blocked based on finding infringing material on a single subdomain. The Supreme Court has compared such over-broad censorship to "burning the house to roast the pig."

The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world. America's strong support for Internet freedom has "made the United States the world leader in a wide range of Internet-related industries," the professors write. "Passage of the Act will compromise our ability to defend the principle of a single global Internet. As such, it represents the biggest threat to the Internet in its history."

As much as I dislike the PROTECT IP Act, I feel like I am completely powerless to do anything about it (sadly, I have no lobbying budget). That's why I feel so happy when people with more clout share my opinions and take a public stand.

That all sounds pretty conclusive to me. And they didn't even have to bring up the 4th Amendment. My question is why Congressturds who constantly vote for, or introduce, unconstitutional legislation aren't imprisoned as the domestic enemies of the Constitution that they are, instead of just being reelected by morons.

"The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world."

I realize that is just one of many arguments but being a person from "around the world" I've never felt that free speech was of any interest to the USA anywhere but in their own country. The credibility of USA supporting free speech and democracy etc. overseas hasn't held much water for decades.

"The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world."

I realize that is just one of many arguments but being a person from "around the world" I've never felt that free speech was of any interest to the USA anywhere but in their own country. The credibility of USA supporting free speech and democracy etc. overseas hasn't held much water for decades.

"The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world."

I realize that is just one of many arguments but being a person from "around the world" I've never felt that free speech was of any interest to the USA anywhere but in their own country. The credibility of USA supporting free speech and democracy etc. overseas hasn't held much water for decades.

"The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order... issued the same day the complaint is filed"-Guilty until proven innocent! Isn't that our new way of doing law in this country?-Just look at what happened in the Casey Anthony trial! The press had her convicted long before she ever got to court! They are still talking about how she is guilty and amazed she was let off. How about Dominique Strauss-Khan? He has been fried by the media by an apparent liar! They could both be guilty but no one can prove it! But then they may not be! How many people have been imprisoned in this country for a crime they did not do because of an overzealous prosecutor wanting to make a name for themself? How many have been executed! 20 years later, oops, we are sorry..........

"The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world."

I realize that is just one of many arguments but being a person from "around the world" I've never felt that free speech was of any interest to the USA anywhere but in their own country. The credibility of USA supporting free speech and democracy etc. overseas hasn't held much water for decades.

Probably as a result of everyone else complaining we stick our nose in where it doesn't belong. Can't have it both ways.

Congress has never particularly worried about whether laws are constitutional or not before they pass them. If it passes and gets challenged in the courts, a lot will depend on whether or not the entertainment industry can slip the right amount of money into the pockets of the right judges, all the way to SCOTUS,

The U.S. hasn't been any kind of leader in free speech for many years.

As much as I dislike the PROTECT IP Act, I feel like I am completely powerless to do anything about it (sadly, I have no lobbying budget). That's why I feel so happy when people with more clout share my opinions and take a public stand.

Simple, don't vote either Republican or Democrat in the next election. And get everyone you know do do likewise.

I don't care who you vote for: anarchist or communist or anything in between.

Just get the duopoly out.

Republocrats are destroying this country. (and if you think there is an actual difference between the two main parties, I have a bridge to sell you on the moon)

As much as I dislike the PROTECT IP Act, I feel like I am completely powerless to do anything about it (sadly, I have no lobbying budget). That's why I feel so happy when people with more clout share my opinions and take a public stand.

If you are in the US I would assume that you have Congress men/women, Senators and maybe even a President or two that represent you and need your vote. Have you sent any of them a letter stating your thoughts?

The reason why senior citizens are such a politically powerful group is that they actually vote and they have no qualms about making sure politicians know when they are PO'd. If you are to lazy to do either then you don't deserve to be heard.

As much as I dislike the PROTECT IP Act, I feel like I am completely powerless to do anything about it (sadly, I have no lobbying budget). That's why I feel so happy when people with more clout share my opinions and take a public stand.

If you are in the US I would assume that you have Congress men/women, Senators and maybe even a President or two that represent you and need your vote. Have you sent any of them a letter stating your thoughts?

The reason why senior citizens are such a politically powerful group is that they actually vote and they have no qualms about making sure politicians know when they are PO'd. If you are to lazy to do either then you don't deserve to be heard.

I agree with Jvillain. Let's all write our congressmen and congresswomen so that we can be ignored or get a 'thank you for voicing your opinion response' written by their aides.

"The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world."

I realize that is just one of many arguments but being a person from "around the world" I've never felt that free speech was of any interest to the USA anywhere but in their own country. The credibility of USA supporting free speech and democracy etc. overseas hasn't held much water for decades.

As much as I dislike the PROTECT IP Act, I feel like I am completely powerless to do anything about it (sadly, I have no lobbying budget). That's why I feel so happy when people with more clout share my opinions and take a public stand.

If you are in the US I would assume that you have Congress men/women, Senators and maybe even a President or two that represent you and need your vote. Have you sent any of them a letter stating your thoughts?

The reason why senior citizens are such a politically powerful group is that they actually vote and they have no qualms about making sure politicians know when they are PO'd. If you are to lazy to do either then you don't deserve to be heard.

The thing is I do write my congressmen and I do vote, but anymore I see both parties as equally corrupt and out of touch. There a lot of Democrats who consider Obama a milquetoast corporate sell-out and a lot of Republicans who are finding their party too unyielding on pet issues.

"The letter also warns that passing legislation that violates America's free-speech principles will undermine the government's credibility when it tries to promote free speech principles around the world."

I realize that is just one of many arguments but being a person from "around the world" I've never felt that free speech was of any interest to the USA anywhere but in their own country. The credibility of USA supporting free speech and democracy etc. overseas hasn't held much water for decades.

I'm sorry you feel that way mr "around the world" but if you don't like your governments policies there's not much any foreign country can do short of invasion.

As much as I dislike the PROTECT IP Act, I feel like I am completely powerless to do anything about it (sadly, I have no lobbying budget). That's why I feel so happy when people with more clout share my opinions and take a public stand.

Simple, don't vote either Republican or Democrat in the next election. And get everyone you know do do likewise.

I don't care who you vote for: anarchist or communist or anything in between.

Just get the duopoly out.

Republocrats are destroying this country. (and if you think there is an actual difference between the two main parties, I have a bridge to sell you on the moon)

Piracy absolutely disgusts me, but I agree with these protests on the particulars of this act. Shutting down domains without even a hearing puts way too much power into the hands of too few. It provides a convenient scapegoat for those in power to shut down the Internet voice of those out there, with limited recourse. I know that legal appeal may be lodged after the fact, but legal action against the government isn't cheap in terms of money, time or effort - many would simply be forced to roll over.

Despite what I see here, the US still seems to be one of the pinnacles of free speech. Ironically it's the way Americans protest whenever anything rears its head to quash their rights that is indicative of that.

Take for example Australia. We don't even have anything in our laws that guarantee or provide free speech; there is very little in the letter of the law to stop the government from silencing us if it so wishes. There is plenty of ignorance about it, and many Australians cite their "right to freedom of speech", but it's based on observation of US culture; we have nothing here that guarantees it.

It may be true that there are forces in the US (and elsewhere) that go to great lengths to ensure that the voice of many isn't heard - and the media plays no small part in that - but the American voice is - at its core - protected.

Now the west just needs to learn to see through the bulls#!t in the media so it can think freely; we may have freedom of speech implied or otherwise, but it probably doesn't matter if we're so badly brainwashed with misinformation.

Back to this article, nearly all you guys know where we stand on PIPA so this might actually surprise you a bit because we are hoping it will pass! We have a few new tricks up our sleeves that will totally derail the effectiveness of this and make what we offer pretty damn famous.

If what we did with the "mafiaafire redirector" seems cool to you now, what we do with PIPA is going to be fucking awesome - and thats a promise.

(Look up our previous posts; everytime we made a promise on Ars, we delivered)

Take for example Australia. We don't even have anything in our laws that guarantee or provide free speech; there is very little in the letter of the law to stop the government from silencing us if it so wishes. There is plenty of ignorance about it, and many Australians cite their "right to freedom of speech", but it's based on observation of US culture; we have nothing here that guarantees it.

Yes, but you have common law rights. So a law purporting to abridge freedom of expression would be read down in the absence of clear legislative intent to regulate it.

... Take for example Australia. We don't even have anything in our laws that guarantee or provide free speech; there is very little in the letter of the law to stop the government from silencing us if it so wishes. There is plenty of ignorance about it, and many Australians cite their "right to freedom of speech", but it's based on observation of US culture; we have nothing here that guarantees it. ...

There might not be any Australian law, but the UN's declaration of Human Rights article 19 guarantees the freedom of expression and opinion to all citizens of it's member nations as I understand it.

Quote:

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Quit an understatement.As if all the countries in Africa, Middle East, Russia, China, Cuba, Iran, and most other UN members give a crap about that document.The UN is a joke.

The UN is a joke ONLY when what it says does not go too well with what they want to do... if on the other hand it aligns well with what they want to do and what they want to force another country to do, then they cry holy murder.

... Take for example Australia. We don't even have anything in our laws that guarantee or provide free speech; there is very little in the letter of the law to stop the government from silencing us if it so wishes. There is plenty of ignorance about it, and many Australians cite their "right to freedom of speech", but it's based on observation of US culture; we have nothing here that guarantees it. ...

There might not be any Australian law, but the UN's declaration of Human Rights article 19 guarantees the freedom of expression and opinion to all citizens of it's member nations as I understand it.

There might not be any Australian law, but the UN's declaration of Human Rights article 19 guarantees the freedom of expression and opinion to all citizens of it's member nations as I understand it./

In theory. But it's not unheard of for a country to simply ignore it when it suits them.

IIRC, Australia ratified the UDHR. As with Europe, human rights are the absolute final arbiter there. Legislation can be struck down in Australia if it contrvenes the UDHR. Even though the UDHR is not a legally binding document, many counties have codified some version of it as fundemental law.

Australia's commitment to the UDHR is strong enough that they have at standing offer to any nation to perform a full human rights audit at any time, for any reason, with full governmental support.

Australia does not need to codify "freedom of speech" in it's constitution; any laws which attempted to supress speech could be sucessfully challenged in court on human rifghts grounds alone. There are not many countries outside of the EU that have gone that far. Not the US, nor my home, Canada.

There might not be any Australian law, but the UN's declaration of Human Rights article 19 guarantees the freedom of expression and opinion to all citizens of it's member nations as I understand it./

In theory. But it's not unheard of for a country to simply ignore it when it suits them.

IIRC, Australia ratified the UDHR. As with Europe, human rights are the absolute final arbiter there. Legislation can be struck down in Australia if it contrvenes the UDHR. Even though the UDHR is not a legally binding document, many counties have codified some version of it as fundemental law.

Australia's commitment to the UDHR is strong enough that they have at standing offer to any nation to perform a full human rights audit at any time, for any reason, with full governmental support.

Australia does not need to codify "freedom of speech" in it's constitution; any laws which attempted to supress speech could be sucessfully challenged in court on human rifghts grounds alone. There are not many countries outside of the EU that have gone that far. Not the US, nor my home, Canada.

The reason why senior citizens are such a politically powerful group is that they actually vote and they have no qualms about making sure politicians know when they are PO'd. If you are to lazy to do either then you don't deserve to be heard.

No, the reason seniors are so powerful is because they have a large well-funded lobbying organization representing them.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.